Boodhoo & Ors v. Attorney General of Trinidad and Tobago (Trinidad and Tobago)  UKPC 17 (01 April 2004)
Privy Council Appeal No. 8 of 2003
(1) Jerome Boodhoo (President) and
(2) Khemkaran Jagram (Secretary) (suing on behalf of
themselves and all other members of the
Sanatan Dharma Sudhar Sadha) Appellants
The Attorney General of Trinidad and Tobago Respondent
THE COURT OF APPEAL OF
TRINIDAD AND TOBAGO
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 1st April 2004
Present at the hearing:-
Lord Nicholls of Birkenhead
Lord Hope of Craighead
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
[Delivered by Lord Carswell]
"4. It is hereby recognised and declared that in Trinidad and Tobago there have existed and shall continue to exist, without discrimination by reason of race, origin, colour, religion or sex, the following fundamental human rights and freedoms, namely –
(a) the right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except by due process of law;
(b) the right of the individual to equality before the law and the protection of the law;
5(1) Except as is otherwise expressly provided in this Chapter and in section 54, no law may abrogate, abridge or infringe or authorise the abrogation, abridgement or infringement of any of the rights and freedoms hereinbefore recognised and declared.
(2) Without prejudice to subsection (1), but subject to this Chapter and to section 54, Parliament may not
(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations;
(h) deprive a person of the right to such procedural provisions as are necessary for the purpose of giving effect and protection to the aforesaid rights and freedoms.
14(1) For the removal of doubts it is hereby declared that if any person alleges that any of the provisions of this Chapter has been, is being or is likely to be contravened in relation to him, then without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the High Court for redress by way of originating motion.
(2) The High Court shall have original jurisdiction –
(a) to hear and determine any application made by any person in pursuance of subsection (1) …"
"It seems to me that this is the right that can most appropriately be invoked by persons who complain of delay by a court in delivering judgment or for that matter failure to deliver judgment. Surely, if the protection of the law means anything, it must mean that persons are entitled to have recourse to the appropriate court or tribunal prescribed by law for the purpose of enforcing or defending their rights against others or resolving disputes of one kind or another. It is axiomatic that such a right is meaningless without a decision by the court or tribunal to which the claim or dispute is referred for adjudication. In my view the right to a decision by the court or tribunal to which a claim has properly been referred, is one of the manifestations of the right to the protection of the law which is not expressly mentioned in section 5 of the Constitution. Since this right sits so comfortably within the ambit of the right to the protection of the law, it is unnecessary, I suggest, to strive to force it artificially into one of the other rights by straining the language in which they are expressed."
Their Lordships do not propose to devote further consideration to the rights in section 5, since they themselves regard the case, as did the Court of Appeal, as one which must be made out under section 4(b), or possibly section 4(a), if it is to succeed.
"For there to be an infringement of this right, the delay in delivering judgment must, in my view, be of such an order as would really make a mockery of a person's right to have a determination of a matter by the competent court or tribunal."
It is hardly necessary to say that different considerations apply to cases of delay in giving judgment from those concerned in cases of delay in affording a hearing. In the latter type of case the evidence which is to be adduced may no longer be reliable or the testimony of essential witnesses may not be obtainable. In the former, of which Goose v Wilson Sandford & Co, (The Times, 19 February 1998) provides an example, delay may have so adversely affected the quality of the decision that it cannot be allowed to stand. It may be established that the judge's ability to deal properly with the issues has been compromised by the passage of time, for example if his recollection of important matters is no longer sufficiently clear or notes have been mislaid. These are, however, extreme cases, ordinarily associated with inordinately long periods of delay. In his judgment in the present case de la Bastide CJ referred to the setting of target times, observing at pages 13-14:
"I have in the past suggested that in the context of our conditions six months should be regarded as the maximum time which parties should reasonably be expected to wait for a judgment from the High Court or Court of Appeal. I do not think, however, that because the delay in giving judgment has gone past that marker it should immediately and automatically be regarded as an infringement of the litigants' constitutional rights. I think it is necessary to set the bar a good deal higher before that stage is reached, bearing in mind that our Constitution does not provide any right to trial within a reasonable time either in criminal or in civil cases. I have already suggested that it is only when the delay becomes so gross as to make a mockery of a party's right to the Court's adjudication, that the infringement is established. When that occurs is, I think, better left to be established on a case by case basis."
Their Lordships are in basic agreement with these views and with the approach which the Court of Appeal adopted to this issue, subject to the formulation which follows.